Hill v. Gray , 81 Mo. App. 456 ( 1899 )

BIGGS, J.

In April, 1897, the defendants, Erank H. Gray and Louis P. Gray, were doing business under the firm name of E. H. Gray & Bro. The business of the firm was building houses for sale and speculating in real estate. They owned 112 feet of ground fronting on the north line of Russell avenue in the city of St. Louis. At the time above mentioned they commenced the erection of four houses on the land, which when completed were numbered respectively, 3827, 3829, 3831 and 3833. The houses were separate, but were built on contiguous subdivisions of the city block. Gray & Bro. contracted with plaintiff to furnish, the material and do all the plumbing work on the houses for the total sum of $720, or $180 for each house. About the time the houses were completed the Grays sold them to four different persons, the defendant Carrie Price buying house numbered 3831. The plaintiff complied with his contract, and the Grays having failed to pay him, he filed a blanket or single lien upon all the houses. In the lien paper he set forth in separate accounts the work done and materials furnished for each house. Within the time prescribed he brought suit to enforce the lien. He made the Grays and the several purchasers defendants. Before the trial plaintiff compromised his lien claim with three of the purchasers for $295, and he thereupon released three houses from the lien and dismissed the action as to them. Mrs. Price declined to pay anything. TJpon the trial the plaintiff gave credit on the account for $295, the amount received by him as aforesaid, and the court sitting as a jury rendered judgment against the Grays for $425, the balance due on plaintiff’s account, and enforced a lien on the house belonging to Mrs. Price for the value of the work done and materials furnished in the building thereof to wit, $174.90. Erom that judgment Mrs. Price alone appealed.

The appellant asked the circuit court to instruct that under the law and evidence the lien could not be enforced against her house because the release of the other houses destroyed the lien as to all. We have been unable to appreciate the force of the argument in support of this assignment. We held in Kick v. Doerste, 45 Mo. App. 134, that where work is done under one general contract on several buildings situated on contiguous lots, the mechanic or materialman could file either separate liens on each house or a single lien on all. In the present case there was a single lien, but the lien paper contained separate statements of the work done and materials furnished for each building. If separate liens could have been filed we can imagine no good reason for holding that the general lien should be enforced in its entirety or not at all, especially as the lien paper contained separate statements of the materials furnished and work done on each house.

The further contention that the finding and judgment of the court in establishing the lien against one house are variances from the lien and the allegations of the petition rests on the same argument and must likewise be overruled. So the point that the plaintiff failed to file a just and 'true account is likewise untenable. The account when filed was correct. The fact that plaintiff subsequently accepted a part of his lien claim did not render the account as origipally filed an unjust and untrue account.

As there was substantial evidence that the plaintiff filed his lien within six months after the plumbing was completed, we can not disturb the judgment on the ground that the lien was filed out of time. On this point the plaintiff’s evidence is not entirely satisfactory to us, but the trial judge, who had the witnesses before him, was satisfied with it, and we must affirm his finding.

The petition and lien accurately describe the lots upon which the houses were erected, that is, certain subdivisions of city block No. 4948, fronting 112 feet on the north line of Russell avenue, and giving the numbers of the houses. The only particular description of the house belonging to appellant was its number. That was sufficient to identify the house and the lot upon which it was erected. The statute requires “a true, description of the property, or so near as to identify- the same.” In DeWitt v. Smith, 63 Mo. loc. cit. 265, the supreme court ruled that “if there appear enough in the description to enable a party, familiar with the locality, to identify the premises intended to be described with reasonable certainty, fo the exclusion of others, it will be sufficient”

It is contended that the plaintiff was a subcontractor, and that as his lien was not filed within four months after the final completion of the work there could be no enforcement of the lien. The argument in support of this proceeds upon the idea that as the legal title to the lots was vested in Frank H. Gray and Louis P. Gray as individuals, and that as plaintiff’s contract for doing the work was with the firm of E. IT. Gray & Bro., this made the firm the original contractor and the plaintiff a subcontractor. There is no merit whatever in this contention. All of the evidence was to the effect that E. H. and Louis P. Gray composed the firm of E. H. Gray & Bro., and thait the lots belonged to the partnership. The fact that the legal title of the lots was vested iñ the members of the firm as individuals, has no legal significance. The. conveyanee could not have been made in any other way, as a partnership is not a legal entity. 'A conveyance of real estate purchased by a partnership must be either to the individual members of the firm or some one of them, or to some person capable of taking for the firm.

Finding no error in the record, the judgment of the circuit court will be affirmed. - •

All concur.